Technology Insurance Company, Inc. v. Philadelphia Indemnity Insurance Company

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: Sonnac nnn ence nnnnns IK DATE FILED:_02/03/2022 TECHNOLOGY INSURANCE COMPANY, INC., : Plaintiff, : : 21-cv-7387 (LJL) -\V- : : ORDER PHILADELPHIA INDEMNITY INSURANCE : COMPANY, : Defendant. : wn ee KX LEWIS J. LIMAN, United States District Judge: Plaintiff Technology Insurance Company, Inc.’s motion to compel the production of “all information” in the claim file of Defendant Philadelphia Indemnity Insurance Company “including claims notes, relating to its decision-making process in connection with its August 23, 2019 disclaimer letter,” Dkt. No. 16, is denied without prejudice. Plaintiff relies entirely on the New York Appellate Division’s decision in Bombard v. Amica Mut. Ins. Co., 11 A.D.3d 647 (2d Dep’t 2004), for its blanket assertion that Defendant cannot assert the attorney-client privilege or the attorney work-product doctrine. However, as both Judge Furman and Judge Lynch have observed, “it is federal law, not state law, that ‘governs the applicability of the work product doctrine in all actions in federal court.’” Tower 370 Co. LP v. Affiliated FM Ins. Co., 2021 WL 1222438 , at *4 (S.D.N.Y. Apr. 1, 2021) (quoting Weber v. Paduano, 2003 WL 161340 , at *3 (S.D.N.Y. Jan. 22, 2003) (Lynch, J.)). Moreover, on its face, Bombard appears to apply to “reports which aid [the insurer] in the process of deciding which of two indicated actions to pursue in the regular course of its business” or, in other words, “[r]eports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim.” 11 A.D.3d at 648 . Plaintiff has not shown that each of the requested documents falls within that category. Defendant represents that it has served a privilege log that “specifies the materials” over which it claims privilege. Dkt. No. 18. Plaintiff's motion is denied without prejudice to it being renewed on an application identifying the particular documents over which it claims privilege is improperly asserted, citing both federal law (for the attorney work-product doctrine) and state law (for the attorney-client privilege). The Clerk of Court is respectfully directed to close Dkt. No. 16. SO ORDERED. wel MAE oe Dated: February 3, 2022 New York, New York LEWIS J. LIMAN United States District Judge